2017 Mass. App. Div. 67

November 4, 2016 - April 27, 2017

Appellate Division Southern District

Court Below: District Court, Quincy Division

Present: Hand, P.J., Welch & Finnerty, JJ.

Thomas A. Hensley for the plaintiff.

James M. McCreight for the defendant.

FINNERTY, J. The defendant, Enide Florestal ("Florestall , a tenant in property owned by the plaintiff, Shirley Solow, as Trustee of RHS Nominee Trust ("Solow”), appeals a judgment against her in a summary process proceeding for Florestal's failure to pay rent for three consecutive months.

Florestal rents the premises under a written lease pursuant to the Section 8 Housing Choice Voucher Program of the U.S. Department of Housing and Urban Development through the Boston Housing Authority ("BHA") [Note 2] Florestal failed to make payments to Solow of her portion of the monthly rent, although the Boston Housing Authority continued to make timely payments to Solow of its subsidized portion. On December 4, 2015, Florestal was served with a notice to quit for nonpayment of rent and termination of lease with a copy to the Boston Housing Authority alleging rent arrears of $1,787.00 due from Florestal. Florestal did not cure the arrearage, and on December 21, 2015, was served with a summary process summons and complaint. Florestal filed no answer or counterclaim, and the summary process trial was held on January 7, 2016, at which time Florestal had still not cured the arrearage.

At the trial, Florestal informed the court that she was trying to obtain a rent adjustment (to increase the portion of rent covered by the Section 8 program subsidy). The trial court, after giving the parties an opportunity to enter into an agreement and patiently hearing from the defendant and explaining to her the reasons for the court's decision based on the facts of the case and the law, entered judgment for Solow for possession and for rent due in the amount of $2,717.00, plus costs.

In her notice of appeal, Florestal contended that she was waiting for an adjustment from the BHA in her rent share and that she could cure the deficiency after an adjustment. She claims that pursuant to G.L. c. 186, § 11, the court was required to wait for an explanation regarding Florestal's subsidy. That statute, which deals with determination of leases for nonpayment of rent, provides in part:

Page 68

"If the neglect or refusal to pay the rent due was caused by a failure or delay of the federal government, the commonwealth or any municipality, or any departments, agencies or authorities thereof, in the mailing or delivery of any subsistence or rental payment, check or voucher other than a salary payment to either the tenant or the landlord, the court in any such action shall continue the hearing not less than seven days in order to furnish notice of such action to the appropriate agency. ..."

Florestal urges us to read that statute to require the court to wait for the BHA's decision on whether her rent subsidy was to be adjusted. It is uncontested that Solow had received timely payments of the BHA's portion of the rent, and nothing from Florestal. The evidence at trial was that Florestal had "just called Section 8," and that she had "just faxed" "a couple of papers that I'm here today." Although Florestal has provided in her reply brief additional information regarding a subsidy adjustment made by the BHA after judgment for Solow had entered, that adjustment notice was not before the trial court in any event; came after the time during which Florestal had the right to cure under G.L.c. 186, §11; [Note 3] and came after the determination of the lease. We do not read §11 to require the landlord or the court to wait for a subsidy adjustment decision by a Section 8 program agency. It is worth noting, as well, that Florestal had failed to tender to Solow even the portion of the rent she would have paid after the BHA adjustment. [Note 4] Notwithstanding the later subsidy adjustment, the evidence before the court at trial supports the court's judgment. Florestal's reliance on Weeks v. McGhee, Boston Housing Court, No. 03-01336 (July 15, 2004), is misplaced. In that case, at least a partial cure had been offered and time remained for a full cure when the landlord refused to accept the proffered partial rent There was no error.

Florestal also urges this Division to consider addressing whether the termination of the lease was for "good cause" and is determinative of the collateral consequence of ineligibility for continued participation in the subsidized housing program. In short, that issue was not before the trial court and is irrelevant to these proceedings, which are based on the failure to pay rent. We therefore do not offer any opinion on that issue and, as determination of that question is not necessary to the issue before the trial court, we decline Florestal's request that we return the case to have that question answered.

The defendant's claim of a failure to enter a notice to quit was not raised at trial or preserved for appellate review. See Breault v. Chairman of the Bd. of Fire Comm'rs of Springfield, 401 Mass. 26, 32 (1987), cert. denied, 485 U.S. 906 (1988). Unlike Ryan v.

Page 69

Sylvester, 358 Mass. 18 (1970), the tenant here did not contest having received a notice to quit. See also Squeri v. McCarrick, 32 Mass. App. Ct. 203 (1992). The notice to quit is part of the record. [Note 5] The notice to quit reflects that it was sent via facsimile and first class mail to the BHA, thereby satisfying the lease requirement of notice of determination of the lease to that agency. In any event, notice to the BHA was not a contested issue at the trial and has not been preserved for appellate review. See Breault, supra.

The appeal is dismissed.


[Note 1] As Trustee of RHS Nominee Trust

[Note 2] 42 U.S.C. §1437, the United States Housing Act of 1937, establishes a program for housing subsidies for low-income individuals. Under the program, a part of the rent is paid directly to the landlord by a local housing authority, and the tenant is directly responsible to the landlord for the unsubsidized portion of the rent.

[Note 3] General Laws c. 186, § 11 provides in part, "Upon the neglect or refusal to pay the rent due under a written lease, fourteen days' notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the lease, unless the tenant, on or before the day the answer is due, in an action by the landlord to recover possession of the premises, pays or tenders to the landlord or to his attorney all rent then due, with interest and costs of suit"

[Note 4] Florestal's rent share was $857.00 per month in November, 2015 and $930.00 per month in December, 2015. Her reply brief indicates that the adjustment made by the BRA after the summary process trial reduced her portion to $353.00 per month.

[Note 5] See Rule 2(d) (2) of the Uniform Summary Process Rules, which requires the notice of termination to be filed with the summary process complaint and summons with the return of service.